[agenda item 3] - united nationslegal.un.org/ilc/documentation/english/a_cn4_538.pdf12 august 1949)...

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DIPLOMATIC PROTECTION

[Agenda item 3]

DOCUMENT A/CN.4/538Fifth report on diplomatic protection, by Mr. John Dugard, Special Rapporteur

[Original: English] [4 March 2004]

CONTENTS

Page

Multilateral instruments cited in the present report ..................................................................................................................................... 43

Works cited in the present report ................................................................................................................................................................. 44

IntroductIon ............................................................................................................................................................................ 1–4 45

Chapter Paragraphs

I. protectIon by an admInIsterIng state or InternatIonal organIzatIon .................................................... 5–6 46

II. delegatIon of the rIght of dIplomatIc protectIon and the transfer of claIms .................................... 7–13 47

III. protectIon by an InternatIonal organIzatIon and dIplomatIc protectIon .............................................. 14–36 48

A. Introduction ............................................................................................................................................................ 14 48

B. Article 23 ................................................................................................................................................................ 15–18 49

C. Article 24 ................................................................................................................................................................ 19–20 50

D. Article 25 ................................................................................................................................................................ 21–36 50

IV. human rIghts, dIplomatIc protectIon and a general saVIngs clause ....................................................... 37–43 54

A. Article 26 ................................................................................................................................................................ 37–40 54

B. Alternative formulation for article 21 ..................................................................................................................... 41–43 55

V. dIplomatIc protectIon of shIps’ crews by the flag state ............................................................................. 44–73 55

artIcle 27 ...................................................................................................................................................................... 44–73 55

1. Passengers on board a ship .............................................................................................................................. 68 602. Aircraft crews and passengers ......................................................................................................................... 69–71 603. Spacecraft ........................................................................................................................................................ 72 604. Conclusion ....................................................................................................................................................... 73 60

Multilateral instruments cited in the present report

Source

Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949)

United Nations, Treaty Series, vol. 75, No. 973, p. 287.

Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the protection of victims of non-international armed conflicts (Protocol II) (Geneva, 8 June 1977)

Ibid., vol. 1125, No. 17513, p. 609.

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (Rome, 4 November 1950)

Ibid., vol. 213, No. 2889, p. 221.

44 Documents of the fifty-sixth session

Convention (No. 108) concerning Seafarers’ National Identity Documents (Geneva, 13 May 1958)

Ibid., vol. 389, No. 5598, p. 277.

Vienna Convention on Diplomatic Relations (Vienna, 18 April 1961) Ibid., vol. 500, No. 7310, p. 95.Convention on offences and certain acts committed on board aircraft (Tokyo, 14 September

1963)Ibid., vol. 704, No. 10106, p. 2195.

International Convention on the Elimination of All Forms of Racial Discrimination (New York, 21 December 1965)

Ibid., vol. 660, No. 9464, p. 195.

International Covenant on Civil and Political Rights (New York, 16 December 1966) Ibid., vol. 999, No. 14668, p. 171.American Convention on Human Rights: “Pact of San José, Costa Rica” (San José,

22 November 1969)Ibid., vol. 1144, No. 17955, p. 123.

Convention (No. 147) concerning minimum standards in merchant ships (Geneva, 29 October 1976)

Ibid., vol. 1259, No. 20690, p. 335.

African Charter on Human and Peoples’ Rights (Nairobi, 27 June 1981) Ibid., vol. 1520, No. 26363, p. 217.United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982) Ibid., vol. 1833, No. 31363, p. 3.Convention against torture and other cruel, inhuman or degrading treatment or punishment

(New York, 10 December 1984)Ibid., vol. 1465, No. 24841, p. 112.

Treaty on European Union (Maastricht Treaty) (Maastricht, 7 February 1992) United Nations, Treaty Series, vol. 1757, No. 30615, p. 3.

Consolidated version of the Treaty establishing the European Community (Amsterdam, 2 October 1997)

Official Journal of the European Communities, No. C 325, vol. 45 (24 December 2002), p. 107.

Works cited in the present report

akehurst, M. B.The Law Governing Employment in International Organizations.

Cambridge, Cambridge University Press, 1976. 294 p.

amerasInghe, C. F.Local Remedies in International Law. Cambridge, Grotius, 1990.

410 p.

Principles of the Institutional Law of International Organizations. Cambridge, Cambridge University Press, 1996. 519 p.

borchard, Edwin M. The Diplomatic Protection of Citizens Abroad or the Law of Inter-

national Claims. New York, Banks Law Publishing Co., 1919. 988 p.

bowett, D. W. United Nations Forces: a Legal Study of United Nations Practice.

London, Stevens, 1964. 579 p.

boyars, U. R. Citizenship in International and National Law. Riga, Stuchka State

University of Latvia, 1981.

brownlIe, Ian Principles of Public International Law. 6th ed. Oxford, Oxford Uni-

versity Press, 2003. 742 p.

cançado trIndade, A. A. “Exhaustion of local remedies and the law of international organi-

zations”, International Law Review, vol. 57, 1979, pp. 81–123.

daIllIer, Patrick and Alain pelletDroit international public. 7th ed. Paris, LGDJ, 2002. 1510 p.

de lupIs, Ingrid DetterThe Law of War. Cambridge, Cambridge University Press, 1987.

dolzer, Rudolf“Diplomatic protection of foreign nationals”, in Rudolf Bernhardt,

ed., Encyclopedia of Public International Law. Amsterdam, North-Holland, 1992. Vol. 1, pp. 1067–1070.

eagleton, Clyde “International organization and the law of responsibility”, Recueil

des cours de l’Académie de droit international de La Haye, 1950–I. Paris, Sirey. Vol. 76, pp. 323–425.

engers, J. F. “The United Nations travel and identity document for Namibians”,

American Journal of International Law (Washington, D.C.), vol. 65, 1971, pp. 571–578.

fItzmaurIce, G. G. “The case of the I’m Alone”, British Year Book of International Law,

1936 (London), vol. 17, pp. 82–111.

fuller, Lon L.“Positivism and fidelity to law: a reply to Professor Hart”, Harvard

Law Review, vol. 71, 1957, pp. 630–672.

geck, Wilhelm Karl“Diplomatic protection”, in Rudolf Bernhardt, ed., Encyclopedia

of Public International Law. Amsterdam, North-Holland, 1992. Vol. 1, pp. 1045–1067.

gramlIch, Ludwig “Diplomatic protection against acts of intergovernmental organs”,

German Yearbook of International Law, vol. 27, 1984, pp. 386–428.

hackworth, Green Haywood Digest of International Law. Vols. III–IV. Washington, D.C., United

States Government Printing Office, 1942.

Digest of International Law. Vol. V. Washington, D.C., United States Government Printing Office, 1943.

hardy, M. J. L.“Claims by international organizations in respect of injuries to their

agents”, British Year Book of International Law, 1961 (London), vol. 37, pp. 516–526.

hyde, Charles CheneyInternational Law Chiefly as Interpreted and Applied by the United

States. 2nd rev. ed. Vol. 2. Boston, Little, Brown, 1947.

jennIngs, Sir Robert and Sir Arthur watts, eds.Oppenheim’s International Law, vol. I, Peace, introduction and part

1 and parts 2 to 4. 9th ed. Harlow, Longman, 1992. 1333 p.

kamto, Maurice “La nationalité des navires en droit international”, La mer et son

droit: mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec. Paris, Pedone, 2003, pp. 343–373.

kudrIaVtzeV, V. N., ed.Course on International Law. Vol. 3. Moscow, 1990. 260 p.

Diplomatic protection 45

lazareV, Marklen Ivanovitch, ed.Contemporary International Law of the Sea. Moscow, Naouka,

1984. 270 p.

mcnaIr, LordInternational Law Opinions, vol. II, Peace. Cambridge, Cambridge

University Press, 1956. 415 p.

meyers, H.The Nationality of Ships. The Hague, Martinus Nijhoff, 1967. 395 p.

mItrofanoV, M. V. Officials of International Organizations. Moscow, International

Relations, 1981. 117 p.

moore, John Bassett History and Digest of the International Arbitrations to which the

United States has been a Party. Vol. III. Washington, D.C., Government Printing Office, 1898.

A Digest of International Law. Vol. III. Washington, D.C., Govern-ment Printing Office, 1906.

murphy, Sean D., ed.“Contemporary practice of the United States relating to interna-

tional law: Libyan payment to families of Pan Am flight 103 victims”, American Journal of International Law (Washington, D.C.), vol. 97, 2003, pp. 987–991.

nordquIst, Myron H., ed. United Nations Convention on the Law of the Sea 1982: a Commen-

tary. Vol. V, Shabtai Rosenne and Louis B. Sohn, eds. Dordrecht, Martinus Nijhoff, 1989.

o’connell, D. P.International Law. 2nd ed. Vol. 2. London, Stevens, 1970.

pescatore, Pierre“Les relations extérieures des Communautés européennes: contri-

bution à la doctrine de la personnalité des organisations inter-nationales”, Recueil des cours de l’Académie de droit interna-tional de La Haye, 1961–II. Leiden, Sijthoff, 1962. Vol. 103, pp. 9–244.

remIro brotóns, Antonio and othersDerecho Internacional. Madrid, McGraw-Hill, 1997. 1269 p.

rItter, Jean-Pierre“La protection diplomatique à l’égard d’une organisation interna-

tionale”, Annuaire français de droit international, vol. VIII, 1962, pp. 427–456.

schermers, Henry G. and Niels M. blokkerInternational Institutional Law: Unity within Diversity. 4th rev. ed.

Boston, Martinus Nijhoff, 2003. 1302 p.

schwarzenberger, GeorgInternational Law. 3rd ed. Vol. 1. London, Stevens, 1957. 808 p.

seyersted, Finn“United Nations forces: some legal problems”, British Year Book of

International Law, 1961 (London), vol. 37, pp. 351–475.

steIn, Torsten “Interim report on ‘diplomatic protection under the European Union

treaty’ ”, Report of the Seventieth Conference held in New Delhi, 2–6 April 2002. London, International Law Association, 2002.

VereshchetIn, V. S., ed.International Law. Vol. 3. Moscow, 1967.

watts, A. D.“The protection of alien seamen”, International and Comparative

Law Quarterly (London), vol. 7, 1958, pp. 691–711.

wellens, KarelRemedies against International Organisations. Cambridge,

Cambridge University Press, 2002. 295 p.

whIteman, Marjorie M.Damages in International Law. Vol. II. Washington, D.C., United

States Government Printing Office, 1937.

Digest of International Law. Vol. 4. Washington, D.C., United States Government Printing Office, 1965.

Introduction11

1. The Special Rapporteur has submitted four reports to the International Law Commission on the diplomatic pro-tection of natural and legal persons and the exhaustion of local remedies.2 Those reports have covered all the topics traditionally associated with these subjects and proposed 22 draft articles. The Commission has thoroughly consid-ered the reports and given its approval to 16 of the pro-posed articles. Six draft articles have been discarded by the Commission on the ground that they did not properly belong to the subject of diplomatic protection or were not ripe for codification.

1 The Special Rapporteur wishes to acknowledge, with gratitude, the assistance in the preparation of this report of the following student interns: Amanda Rawls and Elina Kreditor of New York University; Frank Riemann of the Kennedy School of Government, Harvard Uni-versity; Megan Hirst of the University of Queensland; and Michael Vagias of Leiden University.

2 Yearbook … 2000, vol. II (Part One), p. 205, document A/CN.4/506 and Add.1; Yearbook … 2001, vol. II (Part One), p. 97, document A/CN.4/514; Yearbook … 2002, vol. II (Part One), p. 49, document A/CN.4/523 and Add.1; Yearbook … 2003, vol. II (Part One), p. 3, docu-ment A/CN.4/530 and Add.1.

2. In his third report, in 2002, the Special Rappor-teur addressed suggestions that the draft articles should be expanded to include a number of matters that do not traditionally fall within the field.3 At its fifty-fourth ses-sion, in 2002, the Commission accordingly considered whether it was desirable to include in the present draft articles provisions dealing with the functional protection by international organizations of their officials; the right of the State of nationality of a ship or aircraft to bring a claim on behalf of the crew, irrespective of the nationality of the individuals concerned; the delegation of the right of diplomatic protection; the protection of persons in a territory controlled, occupied or administered by another State or administered by an international organization; the denial of justice; the “clean hands” doctrine in the con-text of diplomatic protection; and the legal consequences of diplomatic protection.4 The debate in the Commission revealed little support for the inclusion of those topics in the present draft articles, with the possible exception of

3 Yearbook … 2002, vol. II (Part One), p. 55, document A/CN.4/523 and Add.1, para. 16.

4 Ibid., vol. II (Part Two), pp. 50–53, paras. 118–149.


the right of the State of nationality of a ship or aircraft to bring a claim on behalf of its crew.5 The Commission did, however, express the view that consideration should be given to the relationship between functional protection by the United Nations and diplomatic protection by a State and the possibility of competing claims to protection.6

3. In the report on its fifty-fifth session, in 2003, the Commission requested the Sixth Committee of the Gen-eral Assembly to make comments on the diplomatic protection of the members of a ship’s crew by the flag State and the diplomatic protection by States of nation-als employed by an intergovernmental international organization and to express an opinion on whether there were any issues other than those already covered by the Commission which ought still to be considered by the Commission on the subject of diplomatic protection.7 The majority of speakers on those subjects in the Sixth Committee were opposed or indifferent to the inclusion of the diplomatic protection of members of a ship’s crew by the flag State and the diplomatic protection by States of nationals employed by an intergovernmental interna-tional organization. However, there was sufficient interest in those topics to warrant their further consideration by the Commission. Apart from two States, which expressed an interest respectively in the inclusion of provisions on

5 Ibid., p. 52, para. 146. 6 Ibid., para. 145. 7 Yearbook … 2003, vol. II (Part Two), p. 14, tparas. 28–29.

the delegation of the right of diplomatic protection (Czech Republic)8 and the protection of persons in a territory con-trolled or occupied by another State or administered by an international organization (Portugal),9 there was no request for the consideration of any additional subjects by the Commission on the subject of diplomatic protec-tion. On the contrary, many delegations expressed the view that all the subjects traditionally belonging to the field of diplomatic protection had been covered and that it was incumbent on the Commission to conclude its study of the subject as soon as possible, and certainly within the remaining three years of the current quinquennium. Similar views have also been expressed by members of the Commission.

4. The present report will first address the issues of the protection of persons in a territory controlled or occupied by a State or administered by an international intergov-ernmental organization and the delegation or transfer of the right of diplomatic protection, which the Special Rapporteur believes should not be included in the present draft articles. The report will then make proposals dealing with the subject of competing claims to protection of an individual by an international organization and a State, and the protection of a ship’s crew by the flag State.

8 Official Records of the General Assembly, Fifty-eighth Session, Sixth Committee, 17th meeting (A/C.6/58/SR.17), para. 48.

9 Ibid., 18th meeting (A/C.6/58/SR.18), para. 3.

chapter I

Protection by an administering State or international organization

5. The Commission carefully considered the question whether the present draft articles should include the pro-tection of persons of a territory administered, controlled or occupied by another State or international organization at its fifty-fourth session, in 2002.10 There was no support for the inclusion of such a right in the context of military occupation as this falls within the purview of international humanitarian law, and particularly the 1949 Geneva Con-vention relative to the Protection of Civilian Persons in Time of War and the 1977 Protocol Additional to that Convention relating to the protection of victims of non-international armed conflicts.11 Although there was some support in the Commission for the consideration of the protection by an international organization of persons liv-ing in a territory which it administered or controlled, the majority of the Commission took the view that the topic was one that “might be better addressed in the context of the responsibility of international organizations”.12

6. The diplomatic protection of persons resident in a ter-ritory under the protection of a State that does not exercise

10 Yearbook … 2002, vol. II (Part Two), pp. 51–52, paras. 133–136. 11 There is authority for the view that a belligerent occupant does

not have the obligation to afford diplomatic protection to the nationals of an occupied territory: Compensation (Germany) Case (1959), ILR, vol. 28, p. 648; Slovak National Internment Case (1970), ibid., vol. 70, p. 691.

12 Yearbook … 2002, vol. II (Part Two), p. 53, para. 148.

sovereignty over that territory is not without precedent in international law. Persons living in “protectorates”,13 mandates14 or trust territories15 have on occasion been given diplomatic protection by the administering Power, but this practice is limited,16 dependent on the treaty or institutional relationship between the administering State and the administered State and, in any event, rests on the consent of the State against which such protection is to be exercised.17 There is possibly precedent for the protec-tion of persons resident in a territory administered by an international organization or agency—or claimed to be so administered18—but, again, the nature and scope of this

13 Jennings and Watts, Oppenheim’s International Law, pp. 266–274 (especially p. 270).

14 Ibid., pp. 298–300. 15 Ibid., pp. 316–318. 16 National Bank of Egypt v. Austro-Hungarian Bank, Annual Digest

of Public International Law Cases, 1923–1924, vol. 2 (1933), case No. 10, p. 23; Falla-Nataf and Brothers v. Germany, ibid., 1927–1928, vol. 4 (1931), case No. 24, p. 44; Parounak and Bedros Parounakian v. Turkish Government, ibid. 1929–1930, vol. 5 (1935), case No. 11, p. 25; Schwarzenberger, International Law, pp. 378–381.

17 Schwarzenberger, op. cit., pp. 378–381 and 592–595. 18 The United Nations Council for South West Africa, established by

the General Assembly in 1967 in its resolution 2248 (S-V) of 19 May 1967, issued travel and identity documents to Namibians, while South Africa remained in occupation of Namibia (see Engers, “The United Nations travel and identity document for Namibians”). No doubt the Council believed that the issuance of such a document carried with it some right of protection. The writer is not, however, aware of any case


protection will depend on the institutional arrangement between the administered territory, the administering Power and third States. There is thus no evidence, or too little evidence, of a general practice sufficient to warrant codification or progressive development. In any event,

in which such protection was provided. See also Daillier and Pellet, Droit international public, pp. 612–613, para. 394.

chapter II

Delegation of the right of diplomatic protection and the transfer of claims

7. There is a clear distinction between the delegation of the right of diplomatic protection and the transfer of claims. In the former case, one State (or group of States) delegates its right to exercise diplomatic protection on behalf of a national to another State. In the latter case, on the other hand, the injured person transfers his claim aris-ing from the injury to another person, who may or may not be a national of the same State.

8. A State may delegate by means of an international agreement the right to protect its nationals abroad to another State.21 Such an agreement may be entered into when a State has no diplomatic representation in a foreign country where many of its nationals reside;22 or when a State falls under the “protectorate” of another State;23 or, following the outbreak of hostilities, when a belligerent will usually hand over to a neutral State the protection of its nationals in an enemy State.24 The best known example of such a delegation of the right of diplomatic protection today is to be found in article 8c of the Treaty on Euro-pean Union (Treaty of Maastricht), which provides:

Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represent-ed, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State. Member States shall establish the necessary rules among them-selves and start the international negotiations required to secure this protection.25

It is not clear whether this provision, or indeed other arrangements of this kind, contemplates diplomatic pro-tection as this term is understood in the present draft arti-cles, that is, action taken by a State in its own right arising from an injury to a national caused by the internationally wrongful act of another State26—or only consular action, that is, immediate assistance to a national in distress.27 In any event, it is difficult to suggest that a third State which

21 Jennings and Watts, op. cit., p. 936. 22 Oppenheim cites the case of the protection of nationals of Western

Samoa in terms of a 1962 Treaty of Friendship (ibid., footnote 2).23 See footnotes 13 and 16 above.24 See De Lupis, The Law of War, p. 323. 25 Art. 20 of the Consolidated Version of the Treaty establishing the

European Community. See generally on this provision, Stein, “Interim report on ‘diplomatic protection under the European Union treaty’ ”, pp. 277 et seq.

26 See article 1 of the draft articles on diplomatic protection provi-sionally adopted by the Commission (Yearbook … 2002, vol. II (Part Two), p. 67, para. 280).

27 See Stein, loc. cit., particularly pp. 278 and 289.

has not consented to the exercise of diplomatic protection by a European State of which the injured person is not a national could be bound in law to recognize the right of such a State to protect a non-national. It is, after all, the bond of nationality between protecting State and individ-ual upon which diplomatic protection is founded.28 The necessity for the consent of non-European States to the scheme proposed in article 8c of the Treaty of Maastricht is made clear in the article itself as it requires interna-tional negotiations “to secure this protection”.29 This is in line with the Vienna Convention on Diplomatic Relations, which provides that if diplomatic relations are broken off between two States, or if a mission is permanently or tem-porarily recalled, “the sending State may entrust the pro-tection of … its nationals to a third State acceptable to the receiving State”.30

9. There are no general rules on the subject of delegated diplomatic protection. Everything depends on the nature of the treaty or institutional relationship between the dele-gating State, the delegated State and the third State against which the claim for diplomatic protections is brought. This factor, coupled with the limited State practice on the subject, confirms that it is not a topic ripe for codification.

10. The transfer of a claim to diplomatic protection from one person to another may arise in different situations, of which succession on death, assignment and subrogation in the case of insurance are probably the most common. In such cases the rule of continuous nationality, contained in article 4 of the draft articles, applies.31 This means that as long as the claim continuously belongs to a national of the

28 See article 2 of the draft articles adopted by the Commission (footnote 26 above); and Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J., Series A/B, No. 76, p. 16.

29 See Stein, loc. cit., pp. 280–281, 284 and 287. See also Borchard, The Diplomatic Protection of Citizens Abroad or the Law of Interna-tional Claims, p. 472.

30 Art. 45 (c); see also article 46. 31 Jennings and Watts, op. cit., p. 514; Brownlie, Principles of Pub-

lic International Law, pp. 461–463; O’Connell, International Law, pp. 1049–1051. See also the resolution of the Institute of International Law at its 1965 session in Warsaw, Annuaire de l’Institut de Droit Inter-national, vol. II p. 269. Article 2 of the resolution on the national char-acter of an international claim presented by a State for injury suffered by an individual reads:

“When the beneficiary of an international claim is a person other than the individual originally injured, the claim may be rejected by the State to which it is presented and is inadmissible before the court seised of it unless it possessed the national character of the claimant State both at the date of injury and at the date of its presentation.”

here this is a form of functional protection,19 of the kind recognized in the Reparation for Injuries20 case, which the Commission has decided does not belong to the present study on diplomatic protection.

19 Schwarzenberger, op. cit., p. 593. 20 Reparation for Injuries Suffered in the Service of the United

Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174.


claimant State from the time of the injury until the pres-entation of the claim, a change in ownership of the claim will not affect the right of the claimant State to exercise diplomatic protection. As a consequence a claim would be denied:

(a) If the claim had been transferred from a national to a non-national of the claimant State during the critical period, i.e. if the claim had been “denationalized”;32

(b) If the claim had only been transferred from a non-national to a national of the claimant State after the time of the injury,33 i.e. if the claim had been “nationalized”.

11. There is ample authority for the proposition that if the person on whose behalf a diplomatic claim was made dies, the claim can only rightfully be pursued further if the heir or legatee is of the same nationality as the deceased.34 The same principle applies to the assignment of claims.35 According to Brownlie:

If during the critical period a claim is assigned to or by a non-national of the claimant state, the claim must be denied. However, assignment does not affect the claim if the principle of continuity is observed.36

32 Borchard, op. cit., p. 637. 33 Dobozy claim, ILR, vol. 26 (1958–II), p. 345. 34 Stevenson case (1903), UNRIAA, vol. IX (Sales No. 1959.V.5),

p. 385; Gleadell claim (1929), ibid., vol. V (Sales No. 1952.V.3), p. 44; Flack claim, ibid., p. 61; Eschauzier claim (1931), ibid., p. 207; Kren claim (1951–1954), ILR, vol. 20, p. 233; Perle claim (1951–1954), ibid., vol. 21, p. 161; Bogovic claim, ibid., p. 156; Hanover Bank claim (1957), ibid., vol. 26 (1958–II), p. 334; Friede claim (1956), ibid., p. 352; Ruchwarger claim (1959), ibid., vol. 30, p. 215.

35 Perle claim (see footnote 34 above); Dobozy claim, ILR, vol. 26 (1958–II), p. 345; First National City Bank of New York claim (1957), ibid., p. 323; Batavian National Bank claim, ibid., p. 346.

36 Op. cit., p. 462.

12. Subrogation is the legal mechanism allowing the insurer to assume the rights of the insured and make a legal claim for the wrong inflicted. Once the insurer has paid the insured, it steps into the shoes of the person origi-nally injured. The insured can no longer claim damages on his own behalf insofar as he has been compensated by the insurer.37 In insurance subrogation situations, the principle of continuous nationality is only observed when both the insured and the insurer are nationals of the claimant State.38 The claimant State cannot intervene on behalf of foreign insurers even if the insured had been its national.39 Conversely, a State may not claim on behalf of a national insurance company that has insured foreign property because the claim did not belong to a national at the time of the injury. Although there are a few cases in which the claims of insurers of foreign property have been allowed,40 it would seem that this was done on the basis of equity. In any event, these cases do not provide sufficient evidence of a derogation from the continuous nationality rule to constitute an exceptional rule.

13. As the transfer of claims is regulated by the continu-ous nationality rule, there is no need to consider further codification of this subject.

37 See Whiteman, Damages in International Law, p. 1320. 38 The Home Insurance Company (U.S.A.) v. United Mexican

States, UNRIAA, vol. IV (Sales No. 1951.V.1), p. 48. There is, how-ever, authority for the view that the insurer should bear the risks in the contemplation of the policy and therefore not qualify for protection: The Eagle Star and British Dominions Insurance Company (Limited) and Excess Insurance Company (Limited) ((Great Britain) v. United Mexican States) (1931), ibid., vol. V (Sales No. 1952.V.3), p. 142.

39 See O’Connell, op. cit., p. 1051; and Hackworth, Digest of Inter-national Law, vol. V, p. 810.

40 See the cases involving the ships Caldera, Circassian and Mechanic described in Whiteman, Damages …, pp. 1320–1328.

chapter III

Protection by an international organization and diplomatic protection

A. Introduction

14. The relationship between protection by an intergov-ernmental organization of an agent of that organization (sometimes described as functional protection) and diplo-matic protection has been raised on several occasions in debates in the Commission on the subject of diplomatic protection. The question that must now be addressed is whether—and, if so, to what extent and how—this rela-tionship should be addressed in the draft articles on diplo-matic protection. Several articles are proposed below for the consideration of the Commission which seek to cover all the issues arising from this relationship. It may well be that savings clauses of the kind proposed in draft articles 23–24 are unnecessary. On the other hand, a provision such as article 25 is probably necessary in order to take cognizance of the relationship between protection by an international organization and diplomatic protection.

“part four

“protectIon by an InternatIonal organIzatIon and dIplomatIc protectIon

“Article 23

“These articles are without prejudice to the right of an international organization to exercise protection in respect of an agent injured by the internationally wrongful act of a State.

“Article 24

“These articles are without prejudice to the right of a State to exercise diplomatic protection against an international organization.


“Article 25

“These articles are without prejudice to the right of a State to exercise diplomatic protection in respect of a national who is also an agent of an international organization [where that organization is unable or unwilling to exercise functional protection in respect of such a person].”

B. Article 23

These articles are without prejudice to the right of an international organization to exercise protection in respect of an agent injured by the internationally wrongful act of a State.

15. In its advisory opinion in the Reparation for Injuries case41 ICJ held that the United Nations was “an interna-tional person”, which meant “that it is a subject of interna-tional law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims”.42 The Court reasoned that:

In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the Organization, and that he may count on it. To ensure the independence of the agent, and, con-sequently, the independent action of the Organization itself, it is essen-tial that in performing his duties he need not have to rely on any other protection than that of the Organization (save of course for the more di-rect and immediate protection due from the State in whose territory he may be). In particular, he should not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that—whether the agent belongs to a powerful or to a weak State; to one more affected or less affected by the complications of international life; to one in sympathy or not in sympathy with the mission of the agent—he should know that in the performance of his duties he is under the protection of the Organiza-tion. This assurance is even more necessary when the agent is stateless.

Upon examination of the character of the functions entrusted to the Organization and of the nature of the missions of its agents, it becomes clear that the capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter.43

The Court concluded by holding

[t]hat, in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsi-bility of a Member State, the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused to the United Nations [and] … to the victim or to persons entitled through him.44

16. The opinion of ICJ was approved by the General Assembly in its resolution 365 (IV) of 1 December 1949 and has been followed, albeit by necessary implication only, by the Court in other advisory opinions45 and by the ILO Administrative Tribunal in Jurado v. International

41 I.C.J. Reports 1949 (see footnote 20 above).42 Ibid., p. 179. 43 Ibid., pp. 183–184. 44 Ibid., p. 187. 45 Applicability of Article VI, Section 22, of the Convention on the

Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, pp. 195–196; Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, especially pp. 84–85, paras. 50–51, and p. 88, paras. 63–64.

Labour Organization (No. I).46 The practice of the United Nations in asserting claims in respect of its agents wrong-fully injured by States further testifies to the acceptance of the Court’s opinion.47

17. Although there are similarities between functional protection and diplomatic protection, there are also important differences. Diplomatic protection is a mecha-nism designed to secure reparation for injury to the national of a State premised on the principle that an injury to a national is an injury to the State itself. Functional protection, on the other hand, is a method for promot-ing the efficient functioning of an international organi-zation by ensuring respect for its agents. Differences of this kind have prompted both the Commission48 and the Sixth Committee49 to conclude that protection of an agent by an international organization does not belong in a set of draft articles on diplomatic protection. There are many unanswered questions relating to functional protection, of which the following are perhaps the most important: which agents of an international organization qualify for protection?50 To which international organiza-tions does it apply? To the United Nations only or to all intergovernmental organizations?51 Does it apply only to injuries incurred in the course of official duties?52 Is there an obligation on an international organization to

46 ILR, vol. 40 (1970), pp. 296 and 301. 47 See the report of the Secretary-General on reparation for injuries

incurred in the service of the United Nations (A/1347 of 5 Septem-ber 1950); on status of claims for injuries incurred in the service of the United Nations (A/1851 of 10 August 1951; A/2180 of 12 Sep-tember 1952); see also Official Records of the General Assembly, Fifth Session, Supplement No. 1 (A/1287), annual report of the Secretary-General on the work of the Organization, pp. 124–125; ibid., Sixth Session (A/1844), pp. 188–189; ibid., Seventh Session (A/2141), pp. 160–161; ibid., Eighth Session (A/2404), pp. 144–145; ibid., Ninth Session (A/2663), pp. 101–102; ibid., Tenth Session (A/2911), p. 109; Yearbook … 1967, vol. II, document A/CN.4/L.118 and Add.1 and 2, “The practice of the United Nations, the specialized agencies and the International Atomic Energy Agency concerning their status, privileges and immunities: study prepared by the Secretariat”, pp. 218–219; Sey-ersted, “United Nations forces: some legal problems”, pp. 424–426; Bowett, United Nations Forces, p. 243; annual reports of the Director of UNRWA: 1 July 1955–30 June 1956 (A/3212), annex G, para. 17; 1 July 1956–30 June 1957 (A/3686), annex H, para. 8; 1 July 1957–30 June 1958 (A/3931), annex H, para. 5; 1 July 1958–30 June 1959 (A/4213), annex H, para. 7; Brownlie, op. cit., pp. 654–655; draft reso-lution on financing of the United Nations Force in Lebanon (A/51/725/Add.1 of 11 June 1997), para. 8; General Assembly resolution 51/233 of 13 June 1997, para. 8; see also the following General Assembly reso-lutions urging Israel to comply: 52/337 of 26 June 1998; 53/227 of 8 June 1999; 54/267 of 15 June 2000; 55/180 A of 19 December 2000; 55/180 B of 14 June 2001; 56/214 A of 21 December 2001); 56/214 B of 27 June 2002; and 57/325 of 18 June 2003.

48 Yearbook … 2002, vol. II (Part Two), p. 50, para. 122, and p. 52, para. 145.

49 Speakers in the Sixth Committee debate on the Commission’s report in both 2002 and 2003 have made this clear.

50 See the individual opinion by Judge Azevedo in Reparation for Injuries (footnote 20 above), pp. 193–195; and Hardy, “Claims by international organizations in respect of injuries to their agents”, pp. 522–523.

51 Brownlie, op. cit., pp. 654–655. See also the dissenting opinions by Judges Hackworth and Badawi Pasha in Reparation for Injuries (footnote 20 above), pp. 200 and 210 respectively; Pescatore, “Les rela-tions extérieures des Communautés européennes: contribution à la doc-trine de la personnalité des organisations internationales”, pp. 218–219; and Schermers and Blokker, International Institutional Law, p. 1184, para. 1857.

52 Hardy, loc. cit., pp. 521 and 523.


protect its agents?53 Must the injured agent first exhaust local remedies?54 May functional protection be exercised against the State of nationality of the injured agent?55

18. Protection of an agent by an international organi-zation is inherently different from diplomatic protection. Moreover, there are so many uncertainties relating to this form of protection that it is difficult to discern any clear customary rules on the subject. In these circumstances it seems best to exclude the subject from the present study and to make this clear in a savings clause along the lines of article 23. The Commission may wish to express an opinion as to whether functional protection belongs in the study on the responsibility of international organizations. In many respects the subject enjoys the same relationship to the responsibility of international organizations as dip-lomatic protection enjoys to the responsibility of States. This would seem to indicate that there may be a case for a separate study on this topic.

C. Article 24

These articles are without prejudice to the right of a State to exercise diplomatic protection against an international organization.

19. The question whether a State may exercise diplo-matic protection against an international organization on behalf of a national was not addressed by ICJ in Repara-tion for Injuries, although it was of concern to individual judges.56 In 1962, Ritter wrote that this was one of the least explored areas of international law.57 Forty years later, Wellens commented that Ritter’s “observation is still valid today as state practice is rare and case law has not yet explicitly addressed the point of such an exercise being practicable”.58

20. Clearly this is a subject related to diplomatic protec-tion. The rules governing nationality will apply, although it may be necessary to make some modification to the rules on dual nationality where a person is a national of the claimant State and an agent of the defendant interna-tional organization. Whether the rules relating to exhaus-tion of local remedies will apply is not so certain, as is evi-denced by the different views on this subject advanced by scholars.59 Despite the closeness of this subject to diplo-

53 See the Jurado case (footnote 46 above), p. 301; Pescatore, loc. cit., p. 218; and Akehurst, The Law Governing Employment in Interna-tional Organizations, pp. 99–100.

54 Cançado Trindade, “Exhaustion of local remedies and the law of international organizations”, pp. 82–83; Eagleton, “International organization and the law of responsibility”, pp. 351–352; Hardy, loc. cit., p. 526; Amerasinghe, Principles of the Institutional Law of Inter-national Organizations, pp. 440–441, and Local Remedies in Interna-tional Law, pp. 372–373.

55 ICJ answered this question in the affirmative in Reparation for Injuries (see footnote 20 above), p. 186. Sed contra, see the dissenting opinion by Judge Krylov, ibid., p. 218.

56 See, for example, the dissenting opinion by Judge Krylov, I.C.J. Reports 1949 (footnote 20 above), p. 219.

57 “La protection diplomatique à l’égard d’une organisation interna-tionale”, p. 427. See also pages 454–455.

58 Remedies against International Organisations, p. 74. 59 Eagleton, loc. cit., pp. 411–412; Wellens, op. cit., pp. 76–78;

Cançado Trindade, loc. cit., pp. 83–85; Amerasinghe, Local Remedies ..., pp. 373–377; Schermers and Blokker, op. cit., pp. 1184–1185, para. 1858; Gramlich, “Diplomatic protection against acts of intergov-ernmental organs”, p. 398; Ritter, loc. cit.

matic protection, it seems that it is one that belongs to the Commission’s study on the responsibility of international organizations as it will largely be concerned with issues of attribution, responsibility and reparation. Moreover, the present draft articles are mainly concerned with dip-lomatic protection from the perspective of the claimant State—that is, the circumstances in which claims may be brought—and not from that of the defendant State. Inevi-tably a study of diplomatic protection against an inter-national organization would focus attention on the ques-tion whether—and, if so, how—such protection might be exercised against a non-State entity with a legal personal-ity defined by its own constitution rather than customary international law. In these circumstances it is suggested that this matter be considered in the study on the respon-sibility of international organizations. Whether it requires mention in a savings clause of the kind suggested in draft article 24 is highly doubtful.

D. Article 25

These articles are without prejudice to the right of a State to exercise diplomatic protection in respect of a national who is also an agent of an international organization [where that organization is unable or unwilling to exercise functional protection in respect of such a person].

21. The question whether a State may exercise diplo-matic protection in respect of a national who is an agent of an international organization is clearly one that belongs to the present study. This is apparent from debates in both the Commission60 and the Sixth Committee.61

22. The concern of States for the right of diplomatic protection if the United Nations was permitted to bring claims on behalf of their nationals as agents of the Organi-zation62 was reflected in the question addressed to ICJ in the Reparation for Injuries advisory opinion. The General Assembly requested the Court, if it decided that the United Nations might bring a claim against a State with a view to obtaining reparation due in respect of damage caused to an agent, to advise on “how is action by the United Nations to be reconciled with such rights as may be pos-sessed by the State of which the victim is a national?”63

23. In responding to this question ICJ acknowledged at the outset that injury to an agent of the United Nations

60 Yearbook … 2002, vol. II (Part Two), p. 50, para. 123. 61 In both the 2002 and 2003 debates in the Sixth Committee on the

report of the Commission, support was expressed for the consideration of this topic. See in particular the interventions of Morocco (Official Records of the General Assembly, Fifty-seventh Session, Sixth Commit-tee, 21st meeting (A/C.6/57/SR.21), para. 20), the Islamic Republic of Iran (ibid., para. 28), Portugal (ibid., 24th meeting (A/C.6/57/SR.24), para. 12) and Algeria (ibid., 26th meeting (A/C.6/57/SR.26), para. 39) in 2002; and Germany (ibid., Fifty-eighth Session, Sixth Committee, 14th meeting (A/C.6/58/SR.14), para. 61), the Republic of Korea (ibid., 16th meeting (A/C.6/58/SR.16), para. 81), Japan (ibid., para. 86) and Portugal (ibid., 18th meeting (A/C.6/58/SR.18), para. 2) in 2003.

62 See the statements in the Sixth Committee in the debate preced-ing the adoption of the request for an advisory opinion: Yearbook of the United Nations, 1948–49 (United Nations publication, Sales No. 1950. I.11), pp. 936–938; and Official Records of the General Assem-bly, Part I, Third Session, Sixth Committee, 112th–121st meetings, pp. 518–610.

63 I.C.J. Reports 1949 (see footnote 20 above), p. 175.


(who was not a national of the defendant State) might give rise to “competition between the State’s right of dip-lomatic protection and the Organization’s right of func-tional protection”.64 The Court continued:

In such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organiza-tion to refrain from bringing an international claim. The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense, and as between the Organization and its Members it draws attention to their duty to render ‘every assistance’ provided by Article 2, paragraph 5, of the Charter.

Although the bases of the two claims are different, that does not mean that the defendant State can be compelled to pay the reparation due in respect of the damage twice over. International tribunals are al-ready familiar with the problem of a claim in which two or more na-tional States are interested, and they know how to protect the defendant State in such a case.

The risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case. There is no doubt that in due course a practice will be developed, and it is worthy of note that already certain States whose nationals have been injured in the per-formance of missions undertaken for the Organization have shown a reasonable and co-operative disposition to find a practical solution.65

The Court then turned to the problem that might arise when the agent was a national of the defendant State. Here the Court stated:

The ordinary practice whereby a State does not exercise protection on behalf of one of its nationals against a State which regards him as its own national, does not constitute a precedent which is relevant here. The action of the Organization is in fact based not upon the nationality of the victim, but upon his status as agent of the Organization. There-fore it does not matter whether or not the State to which the claim is addressed regards him as its own national, because the question of na-tionality is not pertinent to the admissibility of the claim.

In law, therefore, it does not seem that the fact of the possession of the nationality of the defendant State by the agent constitutes any obstacle to a claim brought by the Organization for a breach of obliga-tions towards it occurring in relation to the performance of his mission by that agent.66

The Court concluded:

When the United Nations as an Organization is bringing a claim for reparation of damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule will usually prevent a conflict between the action of the United Na-tions and such rights as the agent’s national State may possess, and thus bring about a reconciliation between their claims; moreover, this recon-ciliation must depend upon considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States, either generally or in each case.67

24. The failure of ICJ to give clear guidelines on how competing claims of functional protection and diplomatic protection might be reconciled troubled dissenting judges68 and speakers in the Sixth Committee debate on the opin-ion.69 However, no clear proposals were made for achiev-ing such a reconciliation apart from negotiation between

64 Ibid., p. 185. 65 Ibid., pp. 185–186. 66 Ibid., p. 186. 67 Ibid., p. 188. 68 See the opinions of Judges Azevedo, ibid., pp. 193–195, and Kry-

lov, ibid., pp. 217–218. 69 See Official Records of the General Assembly, Fourth Session,

Sixth Committee, 183rd–187th meetings.

interested parties and the possibility of a general conven-tion on the subject.70 That ad hoc negotiation was seen to offer the best solution to the problem was confirmed by both the report of the Secretary-General on the advisory opinion71 and the subsequent General Assembly resolu-tion on the opinion, which authorized “the Secretary- General to take the steps and to negotiate in each particu-lar case the agreements necessary to reconcile action by the United Nations with such rights as may be possessed by the State of which the victim is a national”.72 It is interesting to recall that Soviet-bloc speakers in the Sixth Committee strongly rejected the Court’s opinion on the ground that it undermined the sovereign right of a State to protect its nationals.73

25. Essentially, there are four issues concerning the relationship between functional protection and diplomatic protection that warrant consideration and that were before ICJ in the Reparation for Injuries advisory opinion:

(a) The possibility of multiple claims;

(b) The right of the United Nations to bring a claim on behalf of an agent against the State of nationality of the agent;

(c) The question whether it is possible to distinguish clearly between functional protection and diplomatic protection;

(d) The priority of claims.

26. Multiple claims do not present a serious problem. As ICJ observed in Reparation for Injuries,74 this is not a new phenomenon, but one that international tribunals have had experience in dealing with in the context of competing claims for diplomatic protection involving dual nationals. The important principle to apply here is

70 Ibid., 183rd meeting, p. 277, Mr. Maktos (United States of Ameri-ca).; ibid., Mrs. Bastid (France); ibid., 184th meeting, p. 280, Mr. Fitz-maurice (United Kingdom); ibid., pp. 284–285, Mr. Mattar (Lebanon).

71 Ibid., Annex, document A/955, “Reparation for injuries incurred in the service of the United Nations: advisory opinion of the Inter-national Court of Justice and report of the Secretary-General”. Para-graph 21 of the report states:

“Subject to the General Assembly’s approval, the Secretary-General proposes to adopt the following procedure: Determine which of the cases appear likely to involve the responsibility of a State; consult with the Government of the State of which the vic-tim was a national in order to determine whether that Government has any objection to the presentation of a claim or desires to join in submission; present, in each such case, an appropriate request to the State involved for the initiation of negotiations to determine the facts, and the amount of reparations, if any, involved. In the event of differences of opinion between the Secretary-General and the State concerned which cannot be settled by negotiation, it would be proposed that the differences be submitted to arbitration. The arbitral tribunal would be composed of one arbitrator appointed by the Secretary-General, one appointed by the State involved, and a third to be appointed by mutual agreement of the two arbitrators, or, failing such agreement, by the President of the International Court of Justice.”72 Resolution 365 (IV), para. 2. 73 See footnote 69 above: Mr. Koretsky (USSR), 183rd meeting,

p. 278; Mr. Krajewski (Poland), 184th meeting, pp. 279–280; Mr. Got-tlieb (Czechoslovakia), ibid., p. 286. See also Mitrofanov, Officials of International Organizations, p. 48.

74 I.C.J. Reports 1949 (see footnote 20 above), p. 185, quoted in paragraph 23 above. See also Kudriavtzev, Course on International Law, p. 79.


that there should be no duplication of payments of dam-ages by the defendant State—a principle endorsed by both the Court75 and by the Secretary-General in his report on the implementation of the advisory opinion.76 The draft articles on claims in respect of multiple nationals77 make no mention of this obvious principle. There seems to be no good reason, therefore, why it should be included in a provision on competing claims between functional and diplomatic protection.

27. The ICJ decision in Reparation for Injuries78 in favour of the right of an international organization to bring a claim on behalf of an agent against his State of national-ity was seen as a departure from general principle79 largely because at that time, as acknowledged by the Court, it was not an accepted rule of customary international law that one State of nationality might bring a claim on behalf of a dual national against another State of nationality. Now that it is accepted that such a claim may be brought where the nationality of the claimant State is predominant,80 this aspect of the Court’s opinion is in line with the principles of diplomatic protection. There is no need to make special mention of this matter in a draft article for two reasons: first, because the principle accords with article 6 of the present draft articles; secondly, because any attempt to expound a principle of predominance of connection with an international organization would involve an exami-nation of the employment practices and appointment of agents by the organization in question—a matter that does not belong in the present study.

28. Probably the most effective way of reconciling claims of functional protection and those of diplomatic protection would be to draw up guidelines that clearly identify the type of agents to which functional protection may apply and to further identify the parameters of the functions that qualify for such protection. Having deter-mined who qualifies as an agent and which actions qualify as official functions for the purposes of functional pro-tection, it would then be possible to confine functional protection within clearly demarcated boundaries. Persons and actions falling within these boundaries would qualify for functional protection only while those falling outside would qualify for diplomatic protection. In this way com-petition between the two regimes would be eliminated—completely reconciled. In practice, however, it is not so easy to draw a clear distinction between the two regimes along these lines.

29. The ICJ decision in Reparation for Injuries does not give clear guidelines on this subject. On the question of who is an agent, the Court states that it

75 I.C.J. Reports 1949 (see footnote 20 above), p. 186, quoted in paragraph 23 above.

76 A/955 (see footnote 71 above), para. 23. 77 Arts. 5 and 7. 78 I.C.J. Reports 1949 (see footnote 20 above), p. 186. 79 See the comment by Judge Krylov in Reparation for Injuries

(footnote 20 above), p. 218. See also Boyars, Citizenship in Interna-tional and National Law, p. 68.

80 See article 6 in the present set of draft articles, Yearbook … 2002, vol. II (Part Two), p. 73, para. 280. See also Vereshchetin, International Law, p. 75.

understands the word ‘agent’ in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the Organization with carrying out, or helping to carry out, one of its functions—in short, any person through whom it acts.81

On the question of the type of functions that attract pro-tection, it must be recalled that in Reparation for Injuries the Court was concerned with an injury incurred directly in the course of the agent’s duties. This was emphasized by Mr. Kerno, arguing on behalf of the United Nations, who stressed that the United Nations did not seek a gen-eral right of claims-espousal on behalf of its officials but only a limited right in respect of injuries incurred during service.82 The Court accordingly approached the question before it on the presupposition

that the injury for which the reparation is demanded arises from a breach of an obligation designed to help an agent of the Organization in the performance of his duties.* It is not a case in which the wrongful act or omission would merely constitute a breach of the general obligations of a State concerning the position of aliens; claims made under this head would be within the competence of the national State and not, as a general rule, within that of the Organization.83

That the Court had only the official duties of the agent in mind was further clear from its statement that

the Organization may find it necessary, and has in fact found it neces-sary, to entrust its agents with important missions to be performed in disturbed parts of the world. Many missions, from their very nature, involve the agents in unusual dangers to which ordinary persons are not exposed.84

While the Court’s opinion may be interpreted as authority for the proposition that the United Nations has the right of protection where a staff member is injured while perform-ing his official duties, but not where the injury occurs in the course of some private activity,85 it fails to consider the outer limits of official duties.

30. That the term “agent” is open to different interpreta-tions was emphasized by Judge Azevedo in his individual opinion in Reparation for Injuries. In his view “agent” included officials or experts appointed directly by the Organization, regardless of nationality, but not repre-sentatives of Member States, or experts appointed having regard to their nationality.86 According to this interpreta-tion, would “agent” include a special rapporteur appointed directly by the United Nations, regardless of nationality, but not members of the Commission elected by the Gen-eral Assembly in elections in which geographical distri-bution is a relevant factor? This question illustrates the uncertainty attached to the term “agent”.

81 I.C.J. Reports 1949 (see footnote 20 above), p. 177. 82 I.C.J. Pleadings, Reparation for Injuries Suffered in the Service of

the United Nations, p. 65. 83 I.C.J. Reports 1949 (see footnote 20 above), p. 182. 84 Ibid., p. 183. 85 Seyersted, loc. cit., p. 424; Amerasinghe, Principles ..., p. 440.

This interpretation of Reparation for Injuries was followed by the ILO Administrative Tribunal in the Jurado case (see footnote 46 above). See also Remiro Brotóns and others, Derecho Internacional, pp. 514–515.

86 I.C.J. Reports 1949 (see footnote 20 above), p. 195; see also the dissenting opinion by Judge Krylov, ibid., p. 218. Cf. Hardy, loc. cit., pp. 522–523, who suggests that there should be a “genuine connex-ion” between organization and agent. A similar suggestion was made by Portugal in the debate in the Sixth Committee in 2003 (Official Records of the General Assembly, Fifty-eighth Session, Sixth Commit-tee, 18th meeting (A/C.6/58/SR.18), para. 2).


31. The limits to be placed on acts falling within the performance of official duties is even more controversial. Clearly there is a core of certainty, but there are many unresolved problems of the penumbra, to use the language of Fuller.87 May the United Nations exercise functional protection where an agent’s landlord, angered by fail-ure to pay rent, bursts into his United Nations office and shoots him? Would it be different if the landlord killed him at home? Does functional protection extend to an injury to a United Nations official on paid vacation? Does it extend to a United Nations official on a special mis-sion who is killed in a restaurant by terrorists not opposed to the United Nations but to the Government of the host State? Examples of this kind are legion. Hardy, after con-sidering examples of this kind, and recalling the ICJ com-ment that “[w]hen the United Nations as an Organization is bringing a claim for reparation of damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself”,88 submits that:

Although, therefore, the Opinion was only strictly concerned with claims in respect of injuries incurred during the performance of duty, it is suggested that it is in fact authority for the pursuit of claims on a less restricted basis, namely as a result of breaches of obligations due to the Organization itself, the objects of which are to safeguard the agent in the interests of the Organization.89

32. In the light of the uncertainties pertaining to the meaning of the term “agent” and of the scope of official duties, it seems unwise to draft a provision to the effect that functional protection may be exercised by an inter-national organization in respect of injury to an agent incurred in the course of performing official duties and that all other injuries to such a person are to be the subject of diplomatic protection.90 Not only would such a provi-sion be flawed for reasons of uncertainty, it would also trespass on the field of functional protection which, it is generally agreed, belongs to another study.

33. The suggestion that the criterion to be employed in determining whether an international organization or the State of nationality should exercise protection is that of preponderance—whether the internationally wrongful act was preponderantly directed against the international organization or the State of nationality of the injured agent—is flawed for reasons similar to those advanced above. In penumbral situations of the kind described in paragraph 31 above, where it is unclear whether the agent is engaged in official duties at the time of the injury, it will not be possible to determine whether he was injured because he was an official of the international organiza-tion or because he was a national of a particular State. Indeed, in many such cases, he will be targeted for rea-sons unrelated to either his employment or his nationality.

34. A more helpful method of reconciling competing claims might be to give priority to functional protec-tion where it conflicts with diplomatic protection. The foremost proponent of this view is Eagleton who, in his

87 “Positivism and fidelity to law: a reply to Professor Hart”, p. 635. 88 I.C.J. Reports 1949 (see footnote 20 above), p. 188. 89 Loc. cit., p. 520. 90 A proposal to this effect was made by the Republic of Korea in the

Sixth Committee in 2003 (Official Records of the General Assembly, Fifty-eighth Session, Sixth Committee, 16th meeting (A/C.6/58/SR.16), para. 81).

Hague lectures of 1950,91 advanced the following reasons for according priority to a claim by the United Nations:

(a) It is important for the United Nations to be able to protect its agents. It is only because of the United Nations that the agent has been put at risk of harm, and as a result the United Nations should assume responsibility for the agent’s protection. It is important for the Organization to be able to demonstrate to potential employees its willing-ness to offer protection, and this protection cannot be left to the State of nationality, which may not always be will-ing or able to provide competent protection.

(b) The State of nationality will often not be interested in pressing a claim and may “feel much happier if it were relieved of the burden”92 of doing so, given the expense involved, the State’s probable unfamiliarity with the cir-cumstances of the case, and the possibility of souring its relations with the respondent State.

(c) The defendant State, particularly if a small State, will usually prefer to deal with the United Nations, rather than another (especially a more powerful or an aggres-sive) State.

(d) The individual agent will invariably prefer to have his or her claim made by the United Nations rather than his or her State of nationality. It will often be unclear whether the State of nationality will exercise diplomatic protection at all and, even if it does, how strongly it will advocate for the case of the individual, given political considerations. Moreover, smaller States in particular are unable to wield the same political power or achieve the same levels of publicity and sympathy as the United Nations.

(e) In the light of Article 100 of the Charter of the United Nations, which requires that United Nations staff act out of loyalty to the Organization and shun instruc-tions from their State of nationality, the agent has a closer and more pertinent link to the United Nations than to his or her national State.

(f ) International law requires a higher degree of dili-gence in protecting an official than for protecting a private individual.93 For this reason the injured individual would prefer to have the United Nations, rather than its own State, press the claim.

(g) The United Nations “constitutes a whole more important than any of its parts”.94 Accordingly, by anal-ogy with Article 103 of the Charter, the interests of the United Nations should prevail over those of a Member State in the case of conflict.

35. There is certainly substance in the arguments raised by Eagleton for a prior claim in favour of the United Nations. Whether these arguments apply with equal force to other international organizations is not so clear, as sev-eral of these arguments are founded in the Charter of the United Nations as a higher law. Moreover, there is no support for the principle of priority in the practice of the

91 Loc. cit., pp. 361–363. 92 Ibid., p. 361. 93 See further on this matter, Hardy, loc. cit., p. 517. 94 Eagleton, loc. cit., p. 364.


United Nations. Despite this, the principle of priority for a claim of protection of an agent by an international organi-zation is included in the bracketed part of article 25. The effect of this bracketed phrase is to give an international organization the opportunity first to assert its claim of functional protection against the wrongdoing State. The organization may be unable to do so for several reasons. For instance, the “agent” may not qualify for protection; the injurious act may have occurred outside the perfor-mance of duties; or the constitution of the organization may not recognize functional protection in general or in the particular circumstances of the case. In such a case, the residual right of the State of nationality of the agent will become effective if the national State decides to grant diplomatic protection. This residual right will also arise where, on the facts of the particular case, the organiza-tion decides, in the exercise of its discretion, not to pro-vide protection. (Though it is uncertain whether this will be possible in the light of the authority for the view that there is a duty on the part of an organization to extend functional protection to an agent for injury suffered in the course of his official duties.)95

36. The Commission may prefer to adopt a provision that merely acknowledges the right of a State to exercise diplomatic protection where functional protection is also a possibility, by excluding the bracketed phrase in favour of the priority of functional protection. This would accord with the ICJ approach in Reparation for Injuries,96 and the report of the Secretary-General following the render-ing of that opinion,97 that “there is no rule of law which

95 See the authorities cited in footnote 53 above.96 I.C.J. Reports 1949 (see footnote 20 above), pp. 185–186 and 188. 97 A/955 (see footnote 71 above). See also Remiro Brotóns and oth-

ers, op. cit., p. 515.

assigns priority to the one [claim] or to the other” and leaves it to the “goodwill and common sense”98 of the par-ties concerned to reconcile competing claims by negotia-tion and agreement. That there is merit in this pragmatic approach99 is confirmed by the fact that, in practice, com-peting claims have been reconciled by negotiations100 and, as far as the Special Rapporteur is aware, there is no recorded case in which a potential conflict between an international organization and State of nationality has materialized. On the other hand, it may be contended that without the principle of priority the provision adds little to existing law, restates the obvious and may therefore be omitted altogether.

98 I.C.J. Reports 1949 (see footnote 20 above), pp. 185–186. 99 During the 2003 debate in the Sixth Committee on the report of

the Commission, Germany made a pragmatic suggestion that incorpo-rates the priority principle:

“Regarding the conflict of competing rights to diplomatic protection between the State of nationality of the agent and the organization, a pragmatic approach should be adopted. As diplomatic protection deals with the right of a State or an international organization, Ger-many holds that the decisive criteria should be whether the interna-tionally wrongful act is predominantly directed against the organi-zation or the State of nationality of the acting agent. However, the less affected international person, be it the organization or the State, should be entitled to exercise the right of diplomatic protection if the most affected one is not capable or willing to exercise diplo-matic protection.”

(Summarized in Official Records of the General Assembly, Fifty-eighth Session, Sixth Committee, 14th meeting (A/C.6/58/SR.14), para. 61)

100 See the report of negotiations entered into by the Secretary- General with France, Norway, Sweden and the United States before taking action in respect�